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The
Legal Writer #20 - A Small Victory
By Judge Mark P.
Painter
This column celebrates another small victory.
The
Ohio State Bar Association Report (OBar) had for many
years been using a non-standard system for the
headnotes to cases.
This was a problem because it could lead Ohio
lawyers to think citing "ORC Sect. 4511.19"
was correct. It is not. The proper citation is
"R.C. 4511.19." In Ohio, we do not use the
section mark (Sect. ). Plus it is R.C. not ORC, and
there are periods. In one citation, the people doing
the headnotes were making three errors.
For months, I emailed away, pointing this out. No
response at all. But I finally got the right person,
and it's now fixed! Now, Ohio lawyers won't be misled.
A small step, but an important one. All cases
published in Ohio are in the Ohio format, so lawyers
and judges are used to reading that — if you use
something else, you detract from readability. Why not
do it right — and make it easy on the reader?
If you are in doubt about a citation format, or
anything else, the official manual, and the 2002
changes (one of which bans the use of italics for
anything but emphasis — Latin words are no longer
italicized) are online at www.sconet.state.oh.us/rod.
Useless
And Distracting Stuff
"Now comes the plaintiff [where?],
by and
through the undersigned attorney, and moves this
honorable court to grant summary judgment…"
Does that convey any meaning at all? Of course not
— it's just legal
nonsense. But we litter our legal
documents and pleadings with it. Delete it. Just write
"Jones moves for summary judgment." Unless,
of course, the honor of the court is actually in
question.
"Know all men by these presents…"
What does that mean? I always think I am going to
get a present.
"To all to whom these presents shall come,
greeting…"
This nonsense is on all of my certificates of
election. These quaint documents are a veritable
litany of banned words: know ye, aforesaid, said, in
witness whereof, and even in pursuance of, which is
even worse than pursuant to. Gosh.
"Further affiant sayeth
naught."
This is Elizabethan Middle-English, still sometimes
appearing in affidavits. But in the real world, the -th
has long since been replaced by -s, or by nothing. We
write he says, not sayeth. We make love, not
maketh
love. Bryan Garner's comment on this anachronism:
"When the affiant hath nothing further to say,
the affiant generally stoppeth testifying." i
And is it naught or not. Actually the former makes
more grammatical sense, but "the best choice…is
to uses these phrases not." ii
Remember
To Question
Questions on usage, style, or grammar are welcome.
Please send questions, comments, or particularly good
or bad examples of legal
writing to jugpainter@aol.com.
Readability
Last column, I started listing the two major
readability statistics — remember, you can program
Word to tell you these and more. Statistics for this
column: 11 words per sentence, 2 percent passive
voice. (Remember the 1818 Rule — no more than an
average of 18 words per sentence and 18 percent
passive voice sentences.) iii
FOOTNOTES:
i Garner, Dictionary of Modern Legal
Usage (2nd Ed. 1995), 779.
ii Id., at 378.
iii Painter, The Legal
Writer 2nd Ed.: 40
Rules for the Art of Legal
Writing (2003), 61-72.
____________________________________
Mark Painter is a judge on the Ohio First District Court of
Appeals and an Adjunct Professor at the University of
Cincinnati College of Law. He is the author of five
books, including The Legal Writer 2nd ed.: 40 Rules
for the Art of Legal Writing. The book is available at
Joseph-Beth Booksellers in Cincinnati and Cleveland,
The Book Loft in Columbus, the Ohio Book Store in
Cincinnati, Barnes & Noble in Cincinnati
(Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com.
Judge
Painter has given dozens of seminars on legal writing.
Contact him at jugpainter@aol.com,
or
through his website at www.judgepainter.org.
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